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Judge keeps water flowing

Groundwater users asked court to block state from shutting off wells

By Rocky Barker - Idaho Statesman Edition Date: 05/09/07

A Jerome judge issued a restraining order Tuesday preventing Idaho Water Resources Department Director David Tuthill from shutting off wells that would dry up more than 36,000 acres of crops and reduce water for dairymen, food processing plants and 13 Idaho cities.

Fifth District Judge Jon K. Butler issued the order at the request of the Idaho Ground Water Appropriators, the North Snake Ground Water District and the Magic Valley Ground Water District, who represent 771 groundwater users in the Magic Valley.

Tuthill was poised to issue an order May 14 forcing the groundwater users to shut off their pumps to meet the water rights of two trout producers.

Butler set a hearing for May 30 to hear arguments on the lawsuit filed by the groundwater users.

The groundwater users' lawsuit is the latest skirmish in a water dispute between them and surface water users who depend on water from the Eastern Snake Plain Aquifer. The aquifer is an underground water source the size of Lake Erie, that underlies the state from Ashton west to King Hill. The lawsuit could determine who controls water all over Idaho, including the Treasure Valley.

Water rights

Idaho water law, like water law across the West, is based on the doctrine that first in time is first in right. The oldest water right is the senior right.

In times of drought, users with newer, junior rights are forced to stop using water. Groundwater users' rights are junior to surface water users, including the fish producers.

Tuthill's order, if carried out, would be the largest curtailment under the state's first-come, first-serve water policy in history.

The warning letters were issued as part of a continuing response to water delivery calls made in 2005 by senior water right holders Blue Lakes Trout Farm and Clear Springs Foods Co.

The delivery calls were made under rules for managing groundwater and surface water upheld earlier this year by the Idaho Supreme Court. In that lawsuit, it was senior water users challenging the state's administration of water rights.

The Idaho Supreme Court supported the first-in-time doctrine but said the state had some discretion to balance the needs of senior and junior users.

With this lawsuit, groundwater users are urging the court to go farther and consider how another constitutional doctrine, requiring the state put water to its full economic use, balances against the first-in-time doctrine.

The dispute

These seemingly clashing concepts have been at the heart of the dispute that has pitted the Upper Snake River Valley and large portions of the Magic Valley against the water-rich region reaching from Rupert and Burley through Twin Falls, Buhl and Hagerman.

"Our members were backed into a corner by the threatened curtailment orders and had no choice but to turn to the courts to protect their lawful water rights," said Tim Deeg, president of Idaho Ground Water Appropriators. "I'm optimistic that we'll be able to solve these issues and begin setting the stage for a resolution based upon proper management of the aquifer and the benefits of all right holders."

Members of Idaho Ground Water Appropriators include farmers, dairymen, food producers and 13 Idaho cities, including Dietrich, Hagerman, Hazelton, Shoshone, Jerome, Richfield, Wendell, Gooding, Paul, Heyburn and Rupert.

The order

Tuthill's proposed order came after senior surface users and junior groundwater users were unable to reach an agreement at Gov. Butch Otter's water summit in Burley in April.

"We do adhere to guidance from the court in water distribution matters," Tuthill said. "We'll evaluate the order from the court and make our next step based on our assessment of the law."

Before Tuesday's restraining order, Tuthill's order would have forced farmers in portions of Blaine, Butte, Gooding, Jerome, Lincoln and Minidoka counties to dry up their crops. Cities from Hagerman to Carey could require homeowners to cut back lawn and garden watering.

It also could force commercial, industrial, municipal and stockwater users to lose access to their water. But ultimately these users take far less water than farmers and can afford to pay off the fish producers.

Dairies already have an agreement pending with senior surface water users. State officials have tried to pay some fish producers to subordinate, or give up, their senior rights.

Drying up 36,000 acres would have far greater economic impact on the state than buying those rights. The fish producers have rejected the offers.

But the economic impact could expand. Twin Falls Canal Co. and several other Magic Valley irrigation companies and districts have similar calls made that if enforced in a dry year could force farmers to dry up hundreds of thousands of acres all the way northeast to Rexburg.

The cost of water

That could have dramatic effects on the economy of the entire state. A Utah State University report commissioned by the Legislature in 2004 found that curtailing water rights junior to 1949 when most groundwater pumping for farming began could cost Idahoans $204.3 million. Curtailing rights junior to 1961 could cost $130 million.

Attorney John Simpson, who represents Clear Springs Foods and Twin Falls Canal Co., said his clients are being injured every day they don't get the water that they are entitled.

"We'll find out in this hearing whether first-in-time-is-first-in-right is still the law in Idaho," Simpson said.

Read Rocky Barker's blog at Idahostatesman.com. To offer story ideas or comments, contact him at rbarker@idahostatesman.com or 377-6484.

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